Guidance issued on compliance
with affirmative action
requirements for federal
government contractors
Executive Order 11246, Section 503 of
the Rehabilitation Act of 1973 and the
Vietnam Era Veterans’ Readjustment
Assistance Act all require that federal government
contractors implement and maintain
an affirmative action program.
The Office of Federal Contract
Compliance Programs (OFCCP) released
guidance on how employers required to
maintain an affirmative action program can
determine whether an individual should
be included in the program. The guidance
issued by OFCCP helps employers determine
whether a person is an employee or
an independent contractor or other nonemployee
worker in accordance with the factors
set forth by the United States Supreme
Court in Nationwide Mutual Insurance Co.
v. Darden, 112 S. Ct. 318 (1992). The factors
identified by OFCCP include the following:
•• The contractor’s right to control when,
where and how the individual performs
the job
•• The skill required for the job
•• The source of the instrumentalities
and tools
•• The location of work
•• The duration of the relationship
between the parties
•• Whether the contractor has the right
to assign additional projects to the
individual
•• The extent of the individual’s discretion
over when and how long to work
•• The method of payment
•• The contractor’s role in hiring and
paying assistants
•• Whether the individual’s work is part
of the regular business of the contractor
•• Whether the contractor is in business
•• The provision of employee benefits to
the individual
The application of these factors depends
on each individual employee or worker and
the circumstances of their relationship with
the contractor. No single factor is dispositive,
and contractors must weigh the factors
together in determining if one is an
employee that must be included in an affirmative
action plan. Typically, the extent that
a contractor controls the work of the worker
is the most important factor in determining
employment status. Contractors should document
their analysis of whether an individual
is an independent contractor or an employee
based on this assessment for recordkeeping
purposes.
Conclusion
The lesson to be learned from the examples
contained in this article is clear: a company
not currently reviewing its policies, procedures
and practices for compliance with
state and federal laws does so at its peril.
Defending a lawsuit brought by a current
or former employee can easily cost a company/
employer $100,000. An increasingly
active EEOC, DOL and NLRB are creating
new rules and interpretations of existing
rules that has created a tidal wave of
change. At the end of the day, an employer
cannot afford to be wrong when it comes to
human resources issues. t
Michael P. Spellman is a partner of Sniffen &
Spellman, P.A. He practices in the areas of labor
and employment law, civil rights defense and
insurance defense. The firm only represents employers
and management statewide in a variety of transactional
and litigation matters. He received his
undergraduate degree from the University
of Florida and his J.D. with honors from
Florida State University College of Law. He
may be reached at mspellman@sniffenlaw.com
or 850-205-1996.
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66 | QUARTER 1 2015
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